14 F.

3d 79

UNITED STATES, Appellee,

v.
Nancy Esperanza MATIZ, Defendant, Appellant.
No. 92-1534.

United States Court of Appeals,

First Circuit.
Heard Oct. 4, 1993.
Decided Jan. 4, 1994.

Theodore L. Craft, Boston, MA, by Appointment of the Court, for

defendant, appellant Nancy Esperanza Matiz.
Geoffrey E. Hobart, Asst. U.S. Atty., with whom A. John Pappalardo, U.S.
Atty., and Jeffrey A. Locke, Asst. U.S. Atty., Boston, MA, were on brief
for appellee.
Before BREYER, Chief Judge, ROSENN, * Senior Circuit Judge, and
CYR, Circuit Judge.
ROSENN, Senior Circuit Judge.
Appellant Nancy Esperanza Matiz was tried to a jury and convicted in the
United States District Court for the District of Massachusetts for
conspiracy to possess with intent to distribute five or more kilograms of
cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Matiz appeals
her conviction and argues that: (1) the evidence introduced against her
was insufficient to support the guilty verdict returned by the jury, (2) her
conviction should be reversed on the grounds that the Government's
conduct was outrageous, and (3) the district court erred in enhancing her
sentence for obstruction of justice pursuant to Sec. 3C1.1 of the United
States Sentencing Guidelines. We affirm.1

I.
This case arose out of a large scale investigation conducted by various
1

government agencies in the United States and Colombia, South America into
the cocaine distribution activities of a number of individuals. The United States
Government (the Government) had the assistance of Pedro Alvarez, a defendant
in another criminal matter.

Alvarez, at the behest of the Government, posed as a purchaser and contacted a

number of cocaine suppliers in Colombia. Negotiations ensued over several
months pertaining to the purchase of large quantities of cocaine. In the early
part of 1991, the suppliers in Colombia informed Alvarez that they were
experiencing temporary difficulties in smuggling the cocaine into the United
States. In light of these difficulties, they asked Alvarez to assist them in
transporting the shipment. Additionally, the suppliers asked Alvarez to store
and distribute the cocaine to their associates.

The Government told Alvarez to request an up-front payment of $30,000 for his
troubles and expenses. Reluctantly, the suppliers agreed and informed Alvarez
that the payment would be made by one of their New York based associates,
"La Negra," a code name for Matiz. The suppliers gave Alvarez "La Negra's"
beeper number and code phrase for communication with her.

Alvarez and Matiz ultimately scheduled a meeting for May 23, 1991, for Matiz
to hand over the money to an associate of Alvarez, actually Special Agent
Dominick Lopez, at a Burger King restaurant in Queens, New York. At the
scheduled hour, Matiz, along with an associate named Diaz, drove to the
meeting place in a Nissan Pathfinder. After Lopez entered the vehicle, Matiz
instructed Diaz to get the money. Diaz retrieved the money from under the seat
of the automobile and passed it to Matiz who then gave it to Lopez. The sum,
however, amounted to only $20,000 and Matiz promised to make an additional
payment of $5,000 the next day, explaining that she had been told that the
amount due was $25,000.

After this exchange, Matiz remained in close contact with Alvarez. She
informed him that she was personally expecting to receive a large portion of the
cocaine shipment upon its arrival. The suppliers in Colombia confirmed this
information both in conversations with Alvarez and in facsimile messages sent
to him. The shipment consisting of 615 kilograms of cocaine finally arrived in
the United States on June 4, 1991. On June 5, 1991, the suppliers sent Alvarez
written instructions by facsimile from Colombia regarding the distribution of
the cocaine. The instructions directed that, among others, Matiz should receive
51 1/2 kilograms of the cocaine.

Alvarez telephoned Matiz on numerous occasions to discuss the details of the

Alvarez telephoned Matiz on numerous occasions to discuss the details of the

pickup of her portion of the cocaine. During these conversations, Matiz
expressed her desire to obtain her portion of the cocaine as soon as possible.
Initially, she also voiced an interest in purchasing some of the cocaine that
Alvarez had received as his fee for transporting the cocaine. Ultimately,
however, she decided against it because of financial constraints.

Finally, Alvarez informed Matiz that she would be able to pick up her portion
of the cocaine on June 12, 1991. He reserved a hotel room for Matiz in
Middleboro, Massachusetts near the site for the transfer of the cocaine. Matiz
and Diaz arrived at the hotel on June 10. In a continued effort to conceal their
identities, they checked into the hotel using fictitious names and addresses.

The following evening, Alvarez and Special Agent Dillon met Matiz at the
hotel to review the final arrangements for the pickup. A number of Matiz's
assistants, who had arrived at the hotel on the same day as Matiz, were
designated to collect the cocaine. Also, during this meeting, Agent Dillon gave
Matiz a facsimile message from the suppliers that they sent to Alvarez
instructing her to deposit the purchase price for the cocaine in various accounts
in branches of the Chase Manhattan Bank and the Central Bank in Miami.

At the time of the pickup, one of Matiz's assistants followed an undercover

agent to the warehouse where the car was loaded. Matiz, however, remained
behind at the hotel with another undercover agent who was to accompany her
to a meeting with Alvarez. On the way, they decided to purchase a bottle of
champagne to celebrate the deal. Upon arriving at the liquor store, an agent
placed Matiz under arrest.

II.
A. Sufficiency of the Evidence
10

Matiz first disingenuously contends that the evidence produced at trial does not
show that she knew of or participated in the conspiracy. Rather, she claims that
she "recklessly made a loan to her friend." In evaluating a claim of
insufficiency of the evidence, we "review the evidence as a whole, including all
reasonable inferences from that evidence, in the light most favorable to the
government." United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.1993).
In addition, both direct and circumstantial evidence must be credited on appeal.
United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993). Thus, as long as a
jury could rationally find guilt beyond a reasonable doubt, we must affirm.
Argencourt, 996 F.2d at 1303.

11

Matiz is unable to overcome the very heavy burden that a claim of insufficiency
of evidence places upon her. There is an abundance of evidence that Matiz
knowingly participated in the conspiracy to distribute cocaine. Granted, Matiz's
role initially was to supply Alvarez with a payment of money. That payment,
however, was intrinsically linked to the drug conspiracy to smuggle illicit drugs
into the United States. The advance payment would facilitate the transportation
of the cocaine. In addition, the Government presented evidence at trial that
Matiz spoke to Alvarez over thirty times, in code, with respect to the shipment
of the cocaine. Moreover, the facsimile from the suppliers in Colombia noted
that Matiz was an intended recipient of the cocaine.

12

Finally, Matiz organized and directed the pickup operation in Massachusetts.

Although she herself did not go down to load the cocaine, she sent an assistant
of hers to do the task. The jury simply did not believe Matiz's incredible story
concerning her lack of involvement in the conspiracy. Because of the
abundance of evidence supporting the jury's verdict, this challenge is rejected.

B. Outrageous Government Misconduct

13

Matiz next contends that her conviction should be overturned because the
Government's conduct throughout the course of the investigation constituted
outrageous misconduct in violation of her Due Process rights. Her claim
essentially rests on the Government's initiation of the transaction, the arranged
transportation of the cocaine into the country, and its delivery to various
individuals including herself.

14

Law enforcement conduct runs afoul of the Due Process Clause of the Fifth
Amendment when it violates "fundamental fairness, shocking to the universal
sense of justice." United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637,
1643, 36 L.Ed.2d 366 (1973) (quoting Kinsella v. United States ex rel.
Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)). See
also Hampton v. United States, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 1650-53,
48 L.Ed.2d 113 (1976) (Powell, J., concurring); id. at 495-500, 96 S.Ct. at
1653-55 (Brennan, J., dissenting); United States v. Twigg, 588 F.2d 373, 381
(3d Cir.1978).

15

This court has reviewed many claims similar to the one advanced here and has
consistently rejected them. See, e.g., United States v. Santana, 6 F.3d 1 (1st
Cir.1993); United States v. Barnett, 989 F.2d 546, 560 (1st Cir.), cert. denied, -- U.S. ----, 114 S.Ct. 148, 126 L.Ed.2d 110 (1993); United States v. Marino,
936 F.2d 23, 26-27 (1st Cir.1991); United States v. Panitz, 907 F.2d 1267,

1272-73 (1st Cir.1990). We have recognized that in these modern times with
advanced technology and transportation facilities readily available to criminals,
drug conspiracies, especially of an international character, are extremely
difficult to penetrate and therefore enforcement ingenuity must be encouraged
and greater government involvement allowed. See Barnett, 989 F.2d at 560;
Panitz, 907 F.2d at 1273. The extent of government involvement here, initiating
the transaction and transporting and delivering the cocaine, is no more
excessive than government actions that have been upheld in other cases. See
Panitz, 907 F.2d at 1273; Marino, 936 F.2d at 27.
16

Law enforcement conduct does not violate fundamental fairness when

government officials do not foment crime, cf. Twigg, 588 F.2d at 381, but
resourcefully penetrate an existing drug ring and engage in limited participation
in their unlawful practices. "Such infiltration is a recognized and permissible
means of investigation; if that be so, then the supply of some item of value that
the drug ring requires must, as a general rule, also be permissible." Russell, 411
U.S. at 432, 93 S.Ct. at 1643. The record demonstrates that Matiz was an
important figure in an organized conspiracy to smuggle illicit drugs into this
country and distribute them. When the Colombian suppliers needed money to
facilitate the transportation in this country, they turned to her. The suppliers'
instructions to their associates in this country also filtered through her.

17

The Government did not entice Matiz to purchase and distribute cocaine. She
already had an existing arrangement with her suppliers in Colombia and eagerly
sought a substantial share of the smuggled drug load after it reached this
country. Government agents never sought her out; the Colombian suppliers
arranged to have Alvarez meet her. The Government, at the request of the
suppliers, merely facilitated the transportation of the drugs into this country and
Matiz freely joined in the arrangements and in acquiring a share of the
contraband. Moreover, the Government did not take part in processing,
packaging, or labelling any of the 615 kilograms of cocaine. Furthermore, they
delivered the cocaine to individuals predetermined by the suppliers. We do not
believe that the conduct of the agents employing guile, deception, and clever
stratagems in infiltrating the Colombian drug ring and communicating with
Matiz at the direction of the suppliers to obtain funds for the transportation of
the drugs to this country constituted outrageous and impermissible conduct. See
Panitz, 907 F.2d at 1273.

18

As an alternative to vacating Matiz's conviction based on the Government's

violation of her Due Process rights, Matiz requests that this court use its
supervisory power to reverse her conviction. Guided by considerations of
justice, federal courts may exercise on a limited basis their supervisory power

to "formulate procedural rules not specifically required by the Constitution or

the Congress." United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974,
1978, 76 L.Ed.2d 96 (1983). The Supreme Court has recognized only three
legitimate purposes for the exercise of a court's supervisory power: "To
implement a remedy for violation of recognized rights, to preserve judicial
integrity, ... and finally, as a remedy designed to deter future illegal conduct."
Id. (citations omitted).
19

Neither of these three bases are applicable to the case sub judice. As discussed
previously, the Government's conduct was not outrageous, and Matiz fails to
show any specific violation of a statutory or constitutional right. Moreover,
preserving judicial integrity is only a basis for a court to use its supervisory
power to supervise its own affairs, not the affairs of other government branches.
The court's supervisory power does not "justify a chancellor's foot veto over
activities of coequal branches of government." See United States v. Simpson,
927 F.2d 1088, 1089 (9th Cir.1991) (citations omitted). Since the conduct
alleged by Matiz to be outrageous occurred outside the courtroom, judicial
integrity is not at risk and therefore cannot be used as a basis for a court to
invoke its supervisory power. See id. Finally, since there was no past illegal
conduct on the part of the Government with respect to Matiz, we could not use
our supervisory power to deter it from engaging in future, illegal conduct. See
Id. at 1091. Thus, the use of our supervisory power is not warranted under the
present facts.

C. Enhancement for Obstruction of Justice

20

Finally, Matiz presents two challenges to the district court's enhancement of her
sentence for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1. Her first
challenge is that the district court failed to make specific findings necessary to
establish perjury.

21

Section 3C1.1 requires a sentencing court to enhance a defendant's sentence

level by two points "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the ...
prosecution ... of the instant offense." The commentary to Sec. 3C1.1 provides
that committing perjury is an example of the type of conduct to which this
enhancement applies. U.S.S.G. Sec. 3C1.1, comment (n. 3(b)). The Supreme
Court has stated that a witness testifying under oath commits perjury if "she
gives false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory." United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1116,
122 L.Ed.2d 445 (1993).

22

An enhancement for obstruction of justice is sufficiently supported where a

sentencing court makes a finding "that encompasses all of the factual predicates
for a finding of perjury". Id. at ----, 113 S.Ct. at 1117. At Matiz's sentencing the
court made the following finding:

I23don't need to address the issue of Ramirez.2 I do not wish to imply that a defendant
does not have a right to testify. I make an independent determination here that I
simply did not credit Ms. Matiz' testimony when she did testify. It's my
determination that I do not believe her. I believe that she knowingly told a false story
and, accordingly, will overrule the objection. It's appropriate to have an upward
adjustment for obstruction of justice in this case.
24

The court also stated that it "finds the defendant did commit perjury."

25

The findings encompass all the elements of perjury--falsity, materiality, and

willfulness. The only matter about which the court was not explicit was
whether Matiz's testimony was material. A sentencing court, however, is not
required to address each element of perjury in a separate and clear finding. See
id. In fact, the Court in Dunnigan affirmed a district court's finding that did not
use the term willful.3 Id. at ----, 113 S.Ct. at 1113. Dunnigan only requires that
a sentencing court's findings encompass all of the factual predicates for a
finding of perjury.

26

Moreover, the record demonstrates that Matiz's false testimony denying

knowledge of and participation in the conspiracy was material. If believed, the
jury would have acquitted her. Thus, we can make the determination of
materiality on our own without remanding to the district court. See United
States v. Arias-Villanueva, 998 F.2d 1491, 1513 (9th Cir.), cert. denied, --- U.S.
----, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993). Therefore, the challenge to the
district court's failure to make specific findings is rejected.

27

Matiz also contends that the district court erroneously found that she committed
perjury inasmuch as the record contains no evidence of material untruths. In
reviewing a court's application of the sentencing guidelines to facts of a case,
we use a "clearly erroneous" standard. See United States v. Wright, 873 F.2d
437 (1st Cir.1989). We perceive no clear error; on the contrary, the record
overwhelmingly supports the district court's finding.

28

Throughout her testimony, Matiz argued that she merely loaned money to a
friend and that she was otherwise unconnected to the drug conspiracy. The
Government, however, rebutted her explanation and proved at trial through the

use of recordings and testimony from Government agents that she was
intimately connected to the drug conspiracy. Thus, we cannot say that the
district court committed error in finding that Matiz perjured herself.III.
29

In sum, we conclude that: (1) the evidence introduced against Matiz was
sufficient to support the guilty verdict returned by the jury, (2) the
Government's conduct was not outrageous, and (3) the district court did not err
in enhancing her sentence for obstruction of justice.
The judgment of the district court is

30

Affirmed.

Of the Third Circuit, sitting by designation

The district court possessed subject matter jurisdiction pursuant to 18 U.S.C.

Sec. 3231. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18
U.S.C. Sec. 3742(a)(2)

The court's reference to "Ramirez" concerns evidence presented at trial that

Matiz used an alias, Maria Ramirez. On cross-examination, Matiz denied using
the alias, even though a social security card and an apartment lease bearing that
name were found in her diary. Additionally, her landlord identified her as the
woman he knew as Ramirez

The finding at issue in Dunnigan stated:

The court finds that the defendant was untruthful at trial with respect to
material matters in this case. [B]y virtue of her failure to give truthful testimony
on material matters that were designed to substantially affect the outcome of the
case, the court concludes that the false testimony at trial warrants an upward
adjustment by two levels.
Dunnigan, --- U.S. at ----, 113 S.Ct. at 1117.